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Scott, Colin
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Scott, Colin
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Scott, Colin
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- PublicationAgencification, Regulation and Judicialization: American Exceptionalism and Other Ways of LifeThis paper suggests that a regimes approach, which analyses the variety of state and non-state actors participating within any given regulatory space, might provide a better framework within which to understand the nature and contribution of agencies to regulatory activity. The regimes approach has important implications for understanding the nature and problems of judicialization, since our emphasis is on judicialization as it affects all of the actors in the regime, and not just agencies (where they exist). More generally this approach offers a different perspective on the critical question of state capacity for regulatory governance.
256 - PublicationThe Regulatory State and BeyondIn John Braithwaite’s remarkable set of contributions to thinking about and practice of regulation over four decades the state is one of the central organising concepts. This is true for most thinking about regulation more generally, but for a variety of reasons. In Braithwaite’s case the focus on the state may lie with his original interests as a criminologist, where there is a strong consensus that the responsibility for regulating criminal behaviour not only lies with the state, but provides a core rationale for the existence of the state as monopolist over legitimate use of coercive power. Just as that consensus has broken down with the privatization of some aspects of prisons and policing systems in various countries, so the agreement around the centrality of the state in regulation has been challenged. In this chapter I argue that while some, including myself, have seen in Braithwaite’s early, and highly significant research on the role of the state in regulation, a tendency to neglect the wider community and market context, in fact the seeds of a more broadly based analysis of regulatory capitalism may be found throughout Braithwaite’s oeuvre. Policy and scholarly communities were less receptive to understanding the key role of community and market actors set out from an early stage in Braithwaite’s work and more fully developed in his later work. In this chapter I attempt to locate Braithwaite’s major contributions to the theory and practice of the regulatory state and the broader concept of regulatory capitalism within the wider context of contemporary thinking about regulatory governance.
1183 - PublicationThe Democratic Challenges of Effective Private Regulation and EnforcementEffective private regulation and enforcement presents a challenge to a view of democratic states and governance that the state, by virtue of electoral politics, should have a monopoly over coercive power. However, there is nothing new in the observation of the importance of private power to regulate others. Private regulation clearly belongs in the catalogue of significant regulatory power and in this chapter I suggest how practices of private regulation and enforcement might be accommodated within democratic theory and practice. I suggest in this chapter that if we take the idea of decentring seriously and recognise the emergence of a decentralised nodal governance over many economic and social activities, then we can see the role of governance nodes away from central government not simply as monitoring or scrutinising, but also as originating and performing in respect of key governance activities. This observation transforms the democratic challenge. Instead of trying to pull decentred power back towards traditional representative democracy, we may instead ask how these decentralised governance nodes themselves seek to manage and develop their democratic legitimacy. The management of legitimacy occurs through the setting of norms and adoption of practices relating to how those exercising power in governance nodes undertake their actions. These norms and practices are concerned with a range of issues: who participates in setting agendas?; how decisions on setting norms are made?; how monitoring and enforcement is executed in a manner that is referrable to the decisions of the demos associated with the governance regime?; and how such regimes review, revise and reflect on their activities, to understand their own sources both of legitimacy and effectiveness, but also their relationship of interdependence to others within a decentred governance model? The last main section of the chapter looks at five stages in the regulatory policy cycle to evaluate the evidence of the emergence of novel ways of democratising both public and private nodes of regulatory governance.
240 - PublicationA Meta-Regulatory Turn? Control and Learning in Regulatory GovernanceThe steering of organisational and individual behaviour is a central challenge of contemporary governance. This is important not only for regulation of such matters as the environment, employment relations and financial markets, but also for issues of fundamental rights concerning the behaviour not only of businesses but also of government. Long experience suggests that highly prescriptive approaches to regulation are frequently ineffective or even counterproductive. One reason for this is that we show considerable ingenuity in turning demands to change our behaviour to suit our own interests rather than meeting the public interest. Other reasons include the limited knowledge about the behaviours to be steered and limited capacity for monitoring and enforcement held by governments. An alternative way to think about the problem of steering behaviour is to reduce the emphasis on top down control and seek to exploit the capacity of targeted individuals and organisations both to regulate themselves, to monitor each other and to learn about how they may benefit from pursuing more public regarding objectives. Corporate social responsibility initiatives provide only one example of such a process at play. This piece will evaluate this metaregulatory approach to governance, both its potential and known shortcomings, as a basis for developing regulation which is both more effective and more efficient. It addresses also the legitimacy issues associated with a 'meta-regulatory turn' in governance.
171 - PublicationRegulating in Global RegimesAn increased emphasis on global regulation is a response to the recognition of economic, social and cultural interdependence between the world’s nations and peoples. Policy problems as diverse as reckless behaviour by financial institutions, exploitation of sweat-shop labour in emerging economies, and the threat of climate change present collective action problems which cannot be resolved through the deployment of the state’s authority, capacity and legitimacy alone. Global regulatory regimes which have emerged to address these issues are frequently characterised by participation of both governmental and non-governmental organisations. The chapter addresses concerns about coherence, effectiveness and legitimacy of such regimes. I suggest that a degree of fragmentation is inevitable and may bolster both effectiveness and legitimacy through the enrolment of a wider range of instruments and actors. The analysis of effectiveness highlights the significance of contractual mechanisms, alongside more traditional legal and soft law instruments for regulating. The issue of legitimacy highlights problems created by the mix of instruments and actors within global regulatory regimes and the ways in which actors involved seek to manage their legitimacy. The chapter concludes that further adaptation to the inevitably fragmented and hybrid character of global regulatory regimes might further exploit the potential of broad proceduralization to engage actors involved both in a degree of learning and of self-determination as central aspects of such regimes.
432 - PublicationInternet Filtering: Rhetoric, Legitimacy, Accountability and ResponsibilityThis paper argues that the automatic and opaque nature of internet filtering, together with the fact that it is generally implemented by intermediaries, raises new problems for the law and in particular may tend to undermine aspects of freedom of expression. The paper starts by challenging the rhetoric underlying the use of the term “filtering” and suggests that the use of other terms such as "blocking" or "censorware" may be more appropriate. It then considers where filtering fits into the modalities of governance and the resulting issues of legitimacy and accountability. As regards legitimacy it argues that the use of technology to exert control over internet speech frequently undermines aspects of the rule of law concerning both the process for and content of norms governing behaviour. In relation to accountability, the paper argues that where it is not clear what is being blocked, why, or by whom, the operation of mechanisms of accountability - whether by way of judicial review, media scrutiny, or otherwise - is greatly reduced. Finally the paper suggests that, as compared with control through legal instruments, filtering may rob users of moral agency or responsibility in their use of the internet, with the implication that they may freely do whatever it is technically possible to do, with no necessity of moral engagement in their activities.
1933 - PublicationImplementation: Facilitating and Overseeing Public Services at Street LevelImplementation is a key concept in the language of public policy as a field both of practice and of scholarship. The concept is less well developed in administrative law, but can be put to use in examining the daily practices of street level bureaucrats in giving effect to government programmes in such areas as welfare, housing, health, industrial policy, transport and so on. A focus on implementation takes us to what are frequently for administrative lawyers ‘the dark and windowless areas of the administration (Harlow and Rawlings 2009: 201), since they are not very visible from the perspective of a court-centred approach to administrative law which largely focuses on judicial review. Today, of course, the development of a wide range of mechanisms for supporting the achievement of administrative justice means there is a greater focus by lawyers on such ground level decisions and actions which constitute the implementation of government programmes. The literature has largely focused on the broadening range instruments of accountability and control for decisions rather than primary decision making itself. Arguably, if the architecture of accountability and control was working well, administrative decisions would be properly made and would not need to call on such external scrutiny frequently. A key function of administrative law and administrative justice is to support decisions being made and implemented well on the ground. There is a potential tension between managerial concerns with effective and efficient decision making, on the one hand, and public law values of accountability, equality and legality on the other (Christensen, Goerdel et al. 2011). The focus of this chapter is on that first level implementation of administrative decisions and actions. I have aimed to pitch the analysis at a level of generality such that it captures key questions and trends relating to implementation across contemporary public administration within the member states of OECD. But the analysis has the potential to illuminate the core functions involved in implementation and the variety in how those functions are executed in terms of levels of government, actors and modes across any system of government. The Chapter concludes with an assessment of the role both of proactive and reactive modes of accountability and oversight in supporting legitimate and effective street level implementation.
75 - PublicationWelfare, Regulation and DemocracyChanges in the delivery of public services in the industrialised countries over the last forty years have profoundly changed the ways for delivering and thinking about welfare state provision. For some the shift from welfare state to regulatory state indicates that priority is being given to markets and market failure over traditional welfare concerns with redistribution. Such an analysis leads to concerns about a loss of democratic control. For others, the sharpening of public policy institutions and instruments associated with regulatory governance offers the opportunity to deliver public services in a manner which is both more transparent and more efficient, enhancing outcomes, but without deviating from traditional goals. Changes to provision and oversight of welfare state services in Ireland in the past thirty years have included a degree of fragmentation, but also some consolidation, particularly in the health area. The changes in delivery have sustained a long established pattern of providing services through distinct units, both public and private. The changes in regulatory apparatus are more distinctive. In this paper I explore the character and significance of changes in both delivery and regulation and conclude by evaluating these changes from the perspective of democratic governance, identifying risks, but also indicating how fragmented arrangements for delivering and regulating public services may contribute to enhancing democratic engagement.
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